Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 270, Marzo 1990

1. 413. In communications dated 9 and 25 October 1989, the General Workers' Union (GWU) presented a complaint of violation of trade union rights in Malta. The International Confederation of Free Trade Unions (ICFTU) expressed its support for the complaint in a communication dated 24 October 1989.
2. 414. The Government sent its reply in a communication dated 2 January 1990.
3. 415. Malta has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 416. In a communication dated 9 October 1989, the GWU presented a claim against the Government alleging that the latter had violated Conventions Nos. 87 and 98 by refusing to recognise it as official representative of the global majority of employees in the Customs and Excise Department. The Government's resistance to the GWU's recognition took different forms, ranging from unfair transfers to vindictive intimidation.
2. 417. The current dispute started in April 1989, when the GWU claimed official recognition as representative of the global majority of the employees in the Customs and Excise Department. The Government took the position that representation should be divided according to grades of office, that is, one bargaining unit comprised of guards and lower-grade employees, and another unit grouping officers. The complainant dismisses this position, arguing that there is complete right of promotion all the way up the departmental structure. Therefore, the six grades within the Department cannot be arbitrarily divided into two entities with regard to union representation; this would weaken the workers' representative power.
3. 418. The Government's proposal to refer the matter to independent arbitration was unacceptable to the GWU, by reason of its structure and terms of reference.
4. 419. At shop-floor level, the Government's resistance to industrial action by the GWU has ranged from a subtle staff posting strategy (unfair transfers) to vindictive intimidation. The complainant alleges that about 55 abnormal staff transfers were made when it took strike action within the Customs and Excise Department. In most cases, affected employees were given last-minute instructions to report for work at a different posting from that appearing on the official duty roster already published. In certain cases, union members were directed to call again for duty during their rest period as per amended roster. Of course, the strategy behind this exercise was to neutralise the GWU's industrial strength within the various shifts, by replacing GWU members with rival trade union and government sympathisers.
5. 420. In relation to these unfair transfers the complainant mentions specifically the case of an employee, Mr. Salerno, who, although medically certified as suffering from a delicate ophthalmic condition, was transferred to a dusty and polluted work location most harmful to his eyes. The complainant submits that the Government took this action because the employee in question had obeyed the GWU strike directive. This case could only be settled through the direct intervention of GWU's General Secretary.
6. 421. The complainant adds that civil proceedings have been instituted against the Government under section 18(4) of the Industrial Relations Act, 1976 which, inter alia, prohibits an employer from discriminating against a person who has done an act "... in contemplation or furtherance of a trade dispute and in pursuance of a directive issued by a trade union".
7. 422. The complainant further mentions the case of three union officials. Following a GWU strike directive issued on 10 June 1989, the first employee, Mr. Joseph Stafrace, was sent away from work and replaced by a colleague even though he had already resumed his functions after the strike. As of 9 October 1989, Mr. Stafrace had not received the remuneration covering the period he actually worked until he was sent away and practically locked out throughout his remaining term of duty. The two other GWU union officials, namely Mr. William Grech and Mr. Anthony Formosa, were assigned to day-duty postings, which disadvantaged them financially compared to their colleagues working on shifts; they were never given any official reason for that posting.
8. 423. Finally, the complainant alleges that the Government tolerates the actions of non-GWU members and Government sympathisers, who are thus freely allowed to intimidate GWU members into considering resignation from the GWU. By the complainant's own admission, these forced resignations are very few in number, but it is significant that they are forwarded to the rival union in the Customs Department, rather than being channelled through the GWU.

B. The Government's reply

1. 424. The Government totally rejects the GWU's allegations, arguing that they are a complete misrepresentation of facts and must be motivated by reasons other than trade union issues. It submits that this is essentially a dispute between two rival unions, with the Government involved only as an employer.
2. 425. The Government points out that in past years there had been separate union representation in the Customs and Excise Department for officer grades and for other grades. In fact, in 1975 a Reorganisation Agreement was concluded with the GWU for guards and lower grades, and with the UHM (formerly MGEU) for officer grades. In November 1980 an agreement on restructuring the customs and excise grades was signed between Government and the GWU notwithstanding the fact that the officer grades were still represented by the UHM (and not GWU) since the usual procedures had not been carried out for the formal withdrawl of recognition from UHM and accordance of same to the GWU.
3. 426. Again in December 1986 an agreement regarding the complement of Customs and Excise employees was signed between Government and the GWU, once more ignoring completely the UHM as representing officer grades. This was done in breach of all established procedures and against long-standing industrial relations practice. This 1986 agreement was entered into with the GWU despite the fact that in May 1984 the UHM had made formal representations for continued recognition in respect of officer grades, on the basis of majority membership. Contrary to established practice and procedures the UHM claim was ignored completely and no action was taken to establish which union enjoyed a membership majority, as is usually done.
4. 427. The UHM claim for recognition was only considered three years later, after a change of Government, in May 1987. Even so, recognition was not accorded immediately but only came about after implementation of the usual procedures to establish majority membership. As a result, in November 1987, at a meeting between Government and both unions, the GWU conceded recognition to the UHM in respect of both the officer and the non-officer grades.
5. 428. In April 1989, the GWU claimed sole recognition on the basis of an overall majority in the branch irrespective of grades, and the Comptroller of Customs on behalf of the Government took appropriate action within a few days to consider the claim. Several meetings were held jointly and separately with both unions, each of which claims to have a majority. The Government proposed that a secret ballot be held among the employees to establish which union had a majority membership. Unfortunately, even on this point the unions disagreed. The GWU insisted that the vote be held for all grades while the UHM insisted that it be held separately for officers and for other grades. The latter claimed that this was the practice which had been established over the years. In an attempt to reach an equitable solution, the Government proposed that the matter be referred to independent arbitration acceptable to both unions. The GWU rejected this proposal, insisted on immediate recognition for all grades and resorted to industrial action.
6. 429. The Government submits that the dispute is one between two rival unions and that it is involved only as employer. It does not want to decide arbitrarily in favour of one to the detriment of the other, as regrettably happened in the past. Its position is that the employees themselves should decide which union they wish to represent them. This has been precluded by the opposite positions taken by the unions as to the basis on which a secret ballot should be held. The principle of union representation by sector or grade, where particular interests are involved, has been upheld by the Industrial Tribunal in cases concerning the private sector. However, there is no ruling by a competent authority with regard to this matter in the public sector. To date, this has followed established practice or has been regulated by agreement between the parties. The Government considers it has done everything possible to facilitate a solution to what is basically a disagreement between two unions and not one between a union and the employer, in this case, the Government. It is prepared to recognise that union which represents the majority, either on an overall or on a sectoral basis, if the two unions could agree as to which of these options is in the best interest of the employees.
7. 430. As regards the allegations of vindictive transfers and intimidation the Government submits that they cannot be taken seriously. As happens from time to time, there have been postings within the Department as distinct from transfers. These were made according to the exigencies of the service and to meet the requirements of the Department. These postings involved also personnel who did not participate in the strike orderd by the GWU.
8. 431. In the case of the employee suffering from a physical disability, a posting considered unsuitable was remedied on humanitarian grounds as soon as it was brought to the notice of the authorities.
9. 432. Concerning the judicial protests filed by members of the GWU through its legal adviser, these have already been refuted by the Government. The union has not followed up the matter to date.

C. The Committee's conclusions

1. 433. The Committee notes that the allegations made here can be divided into two groups: (a) the issue of union recognition and/or inter-union rivalry; (b) the general problem of alleged unfair transfers and their specific impact on certain named employees.
2. 434. Concerning the first issue, the Commitee notes that in this case two unions claim to represent a majority of employees in the Customs and Excise Department. The GWU certification request encompasses all employees in the Department, irrespective of their grade whereas, according to the Government, the UHM claims to represent the majority of officers.
3. 435. The Government's proposal that a secret ballot be held to establish which union had a majority was rejected by both unions. The Government's further proposal that the matter be referred to independent arbitration was also rejected by the GWU, which gave as reasons "the structure and terms of reference" of the arbitration tribunal.
4. 436. The Committee has often stated that it is not competent to make recommendations on internal dissensions within a trade union organisation so long as the Government does not intervene in a manner which affects the exercise of trade union rights and the normal functioning of an organisation. (See for example, 265th Report, Case No. 1463 (Liberia).) The Committee adds with the same qualification (i.e. no undue interference by the Government) that it is no more competent to make recommendations on disputes between rival unions concerning the right of representation of the same group of workers, and a fortiori the basis on which a vote should be held amongst the workers.
5. 437. The Government's proposal to refer the matter to independent arbitration, in view of the parties' disagreement respecting the secret ballot, seems on its face a reasonable one in the circumstances. Unfortunately, the GWU gave only cursory reasons for rejecting that proposition and the Committee is not in a position to comment on this aspect of the case. The Government indicates that the principle of union representation by sector or grade has been upheld in the private sector, and that in the public sector the situation is governed by following the established practice on the parties' agreement.
6. 438. Again, it is not for the Committee to make recommendations as to whether there should be one or two bargaining units in the Customs and Excise Department; that issue should be settled at the national level, according to legislation, past practice, doctrine, jurisprudence, or other legally binding sources in Malta. However, the Committee recalls that those who stand to lose the most in such situations of inter-union rivalry are the workers, and that the uncertainty stemming from these power struggles should be resolved as quickly as possible in the best interests of all the parties concerned, in particular the workers. Therefore, the Committee invites the Government to persevere with its efforts, in consultation with the organisations concerned to put in place as soon as possible impartial procedures to enable the customs and excise workers freely to choose their representative.
7. 439. The Committee further notes with respect to that first issue that the Government stated it is prepared to recognise that union which represents the majority of employees, either on an overall on a sectoral basis, if the two unions can agree as to which option is in the best interest of employees.
8. 440. Regarding the second general problem of alleged unfair transfers and their impact on certain employees, the Committee notes that, leaving aside Mr. Salerno's case which has been settled on humanitarian grounds and does not call for further examination, the specific allegations concerning three other employees, namely Messrs. Stafrace, Grech and Formosa, either lack specifics or are ambiguous.
9. 441. As for Mr. Stafrace who, according to the complainant, was "sent away from work ... and practically locked out throughout his remaining tour of duty" the Committee is unable to conclude whether the employee was actually dismissed (as opposed to being suspended or laid off temporarily) and is still out of work and, if so, whether the Government's action amounted to anti-union discrimination. As regards Messrs. Grech and Formosa, the complainant merely asserts that they were assigned to day-duty postings, which placed them at a financial disadvantage. No other evidence is adduced and the only common thread in these three particular cases is the fact that the employees are union officials.
10. 442. The Committee notes indeed from the GWU's communication of 25 October 1989 that some ten employees have launched civil proceedings against the Government, alleging that they were abusively and illegally transferred from their place of work because of their active role in the union and their participation in strikes. However, Messrs. Stafrace, Grech and Formosa are not named parties to these civil suits; therefore, the eventual outcome of the suits would not directly help the Committee to decide whether there was in fact anti-union discrimination in their cases.
11. 443. In reply to the allegations of vindictive transfers the Government answers that, as happens from time to time, there have been postings - as distinct from transfers - within the Department, that these postings were made according to the exigencies of service and to meet the requirements of the Department, and that they also involved personnel who did not participate in the strike ordered by the GWU.
12. 444. In view of these conflicting statements, and in the absence of convincing evidence, the Committee is unable at this stage to conclude whether these transfers were bona fide staffing actions, or anti-union motivated measures aimed at GWU sympathisers. However, it considers that three considerations are appropriate in the particular circumstances.
13. 445. Firstly, it recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions (Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, para. 556).
14. 446. Secondly, it is often difficult, if not impossible, for a worker to prove an act of anti-union discrimination of which he has been the victim (Digest of decisions, para. 567).
15. 447. Thirdly, and from a pragmatic point of view, industrial action situations like this one must be considered in their global context, which includes here allegations of unfair transfers and acts of intimidation condoned by the employer. In that sense, the outcome of the proceedings instituted under section 18(4) of the Industrial Relations Act, No. XIII, 1976, could throw an additional and relevant light on this case, and help the Committee to reach conclusions. In the meantime, both parties are invited to submit additional information on the specific cases raised in the complaint, namely those of Messrs. Stafrace, Grech and Formosa.